Title 1
GENERAL PROVISIONS
Chapters:
1.01 Code Adopted
1.04 Violation of Ordinances—Power of Arrest—Penalty
1.08 Publication of Ordinances
1.12 Code Enforcement
Chapter 1.01
CODE ADOPTED*
Sections:
1.01.010 Code adopted.
1.01.020 Title—Citation—Reference.
1.01.030 Reference applies to amendments.
1.01.040 Codification authority.
1.01.050 Definitions—Construction.
1.01.060 Title—Chapter—Section headings.
1.01.070 Reference to specific ordinances.
1.01.080 Effect of code on past action and obligations.
1.01.090 Adoption of code not to affect ordinances relating to “Reserved” subject matter.
1.01.100 Severability.
1.01.110 Effective date.
* For the statutory provisions regarding the codification of the city’s ordinances, see RCW 35A.21.130.
1.01.010 Code adopted.
The Kirkland Municipal Code, as compiled from the ordinances of the city, and edited and published by Book Publishing Company of Seattle, Washington, is adopted as the official code of the city. (Ord. 2170 § 1, 1971)
1.01.020 Title—Citation—Reference.
This code shall be known as the “Kirkland Municipal Code,” and it shall be sufficient to refer to said code as the “Kirkland Municipal Code” in any prosecution for the violation of any provision thereof or in any proceeding at law or equity. It shall also be sufficient to designate any ordinance adding to, amending, correcting or repealing all or any part or portion thereof as an addition to, amendment to, correction of, or repeal of the “Kirkland Municipal Code.” Further reference may be had to the titles, chapters, sections and subsections of the “Kirkland Municipal Code,” and such reference shall apply to that numbered title, chapter, section or subsection as it appears in that code. (Ord. 2170 § 2, 1971)
1.01.030 Reference applies to amendments.
Whenever a reference is made to this code as the “Kirkland Municipal Code” or to any portion thereof, or to any ordinances of the city, that reference shall apply to all amendments, corrections and additions heretofore, now, or hereafter made. (Ord. 2170 § 3, 1971)
1.01.040 Codification authority.
This code consists of the regulatory and penal ordinances and certain of the administrative ordinances codified pursuant to RCW 35A.21.130. (Ord. 2170 § 4, 1971)
1.01.050 Definitions—Construction.
Unless the context otherwise requires, the following words and phrases where used in the ordinances of the city shall have the meaning and construction given in this section:
(a) “Code” means the Kirkland Municipal Code;
(b) “City” means the city of Kirkland;
(c) “City council” means the city council of the city of Kirkland;
(d) “County” means the county of King;
(e) “Person” means any natural person, firm, association, joint venture, joint stock company, partnership, organization, club, company, corporation, business trust, or the manager, lessee, agent, servant, officer or employee of any of them;
(f) “State” means the state of Washington;
(g) “Oath” includes affirmation;
(h) “Gender.” The masculine gender includes the feminine and neuter;
(i) “Number.” The singular number includes the plural, and the plural includes the singular;
(j) “Tenses.” The present tense includes the past and future tenses, and the future tense includes the present tense;
(k) “Shall” is mandatory, “may” is permissive;
(l) Title of office. The use of the title of any officer, employee, department, board or commission means that officer, employee, department, board or commission of the city of Kirkland;
(m) “Owner” when pertaining to a building or land includes any part owner, joint owner, tenant in common, or joint tenant of the whole or part of such building or land;
(n) “Street” includes all streets, highways, public roads, county roads, avenues, lanes, alleys, courts, places, squares, curbs, sidewalks, parkways, or other public ways in the city which have been or may hereafter be dedicated and open to public use, or such other public property so designated in any law of this state;
(o) “Tenant” or “occupant” when pertaining to a building or land includes any person who occupies the whole or part of such building or land, whether alone or with others;
(p) “Goods” includes wares and merchandise;
(q) “Operate” or “engage in” includes carry on, keep, conduct, maintain, or cause to be kept or maintained;
(r) “Across” includes along, in or upon;
(s) “Sale” includes any sale, exchange, barter or offer for sale;
(t) “Ex-officio” means by virtue of office.
(Ord. 2170 § 5, 1971)
1.01.060 Title—Chapter—Section headings.
Title, chapter and section headings contained herein shall not be deemed to govern, limit, modify, or in any manner affect the scope, meaning or intent of the provisions of any title, chapter or section hereof. (Ord. 2170 § 6, 1971)
1.01.070 Reference to specific ordinances.
The provisions of this code shall not in any manner affect deposits or other matters of record which refer to, or are otherwise connected with ordinances which are therein specifically designated by number or otherwise and which are included within this code, but such reference shall be construed to apply to the corresponding provisions contained within this code. (Ord. 2170 § 7, 1971)
1.01.080 Effect of code on past actions and obligations.
Neither the adoption of this code nor the repeal or amendment hereby of any ordinance or any part of any ordinance of the city shall in any manner affect the prosecution for violations of ordinances, which were committed prior to the effective date hereof, nor be construed as a waiver of any license, fee or penalty at said effective date due and unpaid under such ordinances, nor be construed as affecting any of the provisions of such ordinances relating to the collection of any such license, fee or penalty, or the penal provisions applicable to any violation thereof, nor to affect the validity of any bond or cash deposit in lieu thereof required to be posted, filed or deposited pursuant to any ordinance and all rights and obligations thereunder appertaining shall continue in full force and effect. (Ord. 2170 § 8, 1971)
1.01.090 Adoption of code not to affect ordinances relating to “Reserved” subject matter.
The adoption of this code shall not be construed to repeal, supersede or modify any existing ordinances of a penal or regulatory nature relating to subject matter for which titles and chapters of this code have been assigned and designated herein as “reserved.” (Ord. 2170 § 9, 1971)
1.01.100 Severability.
If any section, subsection, sentence, clause, phrase, part, or any portion of this code is for any reason held to be invalid or unconstitutional by any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this code. The city council declares that it would have adopted this code and each section, subsection, sentence, clause, phrase, part or portion thereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses, phrases, parts or portions be declared invalid or unconstitutional. (Ord. 2170 § 10, 1971)
1.01.110 Effective date.
This ordinance shall be in force and take effect five days from and after its passage by the council and publication as required by law. (Ord. 2170 § 11, 1971)
Chapter 1.04
VIOLATION OF ORDINANCES—POWER OF ARREST—PENALTY*
Sections:
1.04.010 Classes of crime—Penalties.
1.04.011 Serious crimes designated.
1.04.015 Limitation of actions.
1.04.020 Effect of penalty on past actions and obligations.
1.04.030 Cost of prosecution—Payment.
1.04.040 Power of arrest.
1.04.050 Arrest powers deemed additional.
* For the statutory provisions authorizing police officers to arrest for certain misdemeanors upon reasonable belief, see RCW 10.31.100. For the provisions regarding maximum penalties a code city may provide for the violation of its ordinances, see RCW 35A.11.020.
1.04.010 Classes of crime—Penalties.
(a) Any offense defined by this code and any violation of a mandatory provision of this code or any other ordinance of the city constitutes a crime, unless it is a civil violation or traffic infraction. Civil violations include only those violations specifically designated as such in this code or in any ordinance of the city. Traffic infraction means an offense under the provisions of Title 12 of this code, for which monetary penalty may be imposed pursuant to RCW Chapter 46.63, et seq. Crimes are either misdemeanors or gross misdemeanors.
(b) Gross Misdemeanor. Every crime designated in any section of this code or any other ordinance of the city as a serious crime is a gross misdemeanor. Designation as a serious crime may be by notation with (S) immediately preceding the code section, or by use of the words “serious crime” within the section which establishes the elements of the crime or by listing in Section 1.04.011. Any person convicted of a gross misdemeanor for which no penalty is specifically prescribed shall be punished by imprisonment for not more than one year, or by a fine of not more than five thousand dollars, or by both such imprisonment and fine.
(c) Misdemeanor. Every crime which is not a gross misdemeanor is a misdemeanor. Any crime designated as a simple crime in this code or any other ordinance is a misdemeanor. Any person convicted of a misdemeanor for which no punishment is specially prescribed shall be punished by imprisonment for not more than ninety days or by a fine of not more than one thousand dollars or both such imprisonment and fine.
(d) Notwithstanding the maximum penalties established in this section for gross misdemeanors and misdemeanors, the maximum penalty which may be imposed upon any person convicted of a criminal violation of a city ordinance, including any section of this code shall not exceed the maximum penalty which could be imposed for violation of a state criminal statute having the same elements.
(e) Notwithstanding the penalties established by this chapter, unless specified otherwise, violation of any section contained in Title 14 of this code and Section 11.80.110 are civil infractions and the penalty for violation shall be an amount established for such violation by ordinance or court rule. (Ord. 3430 § 1, 1994; Ord. 3253 § 1, 1991: Ord. 2878 § 1, 1985: Ord. 2852 § 2, 1985)
1.04.011 Serious crimes designated.
Pursuant to Section 1.04.010 the following sections are designated as serious crimes:
5.06.060
5.08.210
5.12.070
7.12.025
7.22.020
7.24.050
7.32.080
7.36.120
7.48.010
7.48.040
14.24.020
14.24.050
14.24.130
14.40.030
14.40.040
14.44.040
14.48.010
14.48.020
14.48.060
15.36.030
15.40.010
19.04.050.
For further designation of serious crimes, see Sections:
8.04.025
11.04A.130
12.04.030
21.04.030
22.36.030.
(Ord. 2878 § 2, 1985)
1.04.015 Limitation of actions.
Prosecutions for offenses defined as gross misdemeanors may be commenced within two years after their commission, and for offenses defined as misdemeanors may be commenced within one year after their commission; provided, that any length of time during which the party charged was not usually and publicly resident within the state shall not be reckoned within the one and two years, respectively; and further provided, that where a complaint has been filed within the time limited for the commencement for a criminal action, if the complaint is set aside, the time limitation shall be extended by the length of time from the filing of such complaint to the time such complaint was set aside. (Ord. 3318 § 1, 1992: Ord. 2375 § 1(B), 1978)
1.04.020 Effect of penalty on past actions and obligations.
All prior penalty provisions of the ordinances of the city which impose a fine or imprisonment or both upon conviction are repealed. Nothing herein shall be construed as a repeal of any provision of any ordinance of the city providing for termination, cancellation, loss or forfeiture of any license, permit or privilege granted or regulated by city ordinance or any other penalty imposed other than fine and imprisonment upon conviction of a misdemeanor in a court of competent jurisdiction. (Ord. 2115 § 2, 1970)
1.04.030 Costs of prosecution—Payment.
Whenever anyone is convicted of a crime, in addition to any fine imposed, he must pay the costs of prosecution. In default of such payment he shall be imprisoned until payment is made or worked out on a basis of twenty-five dollars per each day of imprisonment. (Ord. 2852 § 3, 1985: Ord. 895 § 104, 1962)
1.04.040 Power of arrest.
Any police officer of the city having information to support a reasonable belief that a person has committed or is committing a violation of a city ordinance that constitutes a misdemeanor involving physical harm or threats of harm to any person or property, or the unlawful taking of property, or involving the use or possession of cannabis or driving or being in physical control of a motor vehicle while under the influence of intoxicants or controlled substances shall have the authority to arrest the person. (Ord. 2285 § 1 (part), 1975: Ord. 2092 § 1, 1970)
1.04.050 Arrest powers deemed additional.
The authority and power to arrest specified in Section 1.04.040 shall be in addition to all other powers of arrest as may exist under the laws and the statutes of the state of Washington and the ordinances of the city of Kirkland. (Ord. 2285 § 1 (part), 1975: Ord. 2092 § 2, 1970)
Chapter 1.08
PUBLICATION OF ORDINANCES*
Sections:
1.08.010 Required publications.
1.08.015 Designation of official newspaper.
1.08.017 Publication of ordinances in summary form.
1.08.020 Number of publications—Notices of hearing.
* For the statutory provisions regarding the adoption of city ordinances, see RCW 35A.13.190 and 35A.13.200.
1.08.010 Required publications.
(a) All ordinances of the city shall promptly after adoption be published at least once in the city’s official newspaper.
(b) All notices of hearings before the city council, planning commission and hearing examiner shall be published at least once in the city’s official newspaper. (Ord. 4082 § 1, 2007: Ord. 2886 § 1, 1985: Ord. 2600 § 1, 1981: Ord. 972 § 1, 1965)
1.08.015 Designation of official newspaper.
The city shall by council resolution designate an official newspaper. The newspaper so designated must qualify as a legal newspaper under Chapter 65.16 RCW. (Ord. 4082 § 2, 2007: Ord. 3141 § 1, 1988: Ord. 2886 § 2, 1985)
1.08.017 Publication of ordinances in summary form.
All ordinances passed by the city council shall be published verbatim in accordance with the requirements of Section 1.08.010; provided, however, in lieu of such verbatim publication, a summary of the ordinance may be published. Such summary must be approved by the city council and shall include:
(1) The name of the city;
(2) The number of the ordinance;
(3) A descriptive title of the ordinance;
(4) A section-by-section summary of the ordinance;
(5) Any other information which the city council finds is necessary to provide a complete summary;
(6) A statement that the full text of the ordinance will be mailed without charge to any person upon request.
If the ordinance to be summarized contains legal descriptions of real property, then any summary which identifies affected property may do so by address, legal description, vicinity sketch or other reasonable means. (Ord. 3141 § 2, 1988: Ord. 2905 § 1, 1985)
1.08.020 Number of publications—Notices of hearing.
One publication shall satisfy the requirements of this chapter unless a greater number of publications is otherwise required. All notices of hearing shall be published not less than five days prior to such hearing. (Ord. 4082 § 3, 2007: Ord. 972 § 2, 1965)
Chapter 1.12
CODE ENFORCEMENT
Sections:
1.12.010 Purpose.
1.12.020 Definitions.
1.12.030 Voluntary correction.
1.12.040 Notice of civil violation.
1.12.050 Hearing before the hearing examiner.
1.12.060 Abatement by the city.
1.12.070 Stop work orders and orders to cease and desist.
1.12.080 Entry to buildings and premises— Warrants.
1.12.090 Additional enforcement procedures.
1.12.100 Special provisions relating to enforcement of tree regulations.
1.12.110 Special provisions relating to enforcement of nuisance regulations.
1.12.010 Purpose.
The purpose of this chapter is to establish an efficient system to enforce the regulations of the city, to provide an opportunity for a prompt hearing and decision on alleged violations of these regulations, and to establish monetary penalties for violations. (Ord. 4280 § 1 (part), 2011)
1.12.020 Definitions.
As used in this chapter, unless a different meaning is plainly required:
“Abate” means to repair, replace, remove, destroy or otherwise remedy a condition which constitutes a civil violation by such means, in such a manner and to such an extent as the applicable department director determines is necessary in the interest of the general health, safety and welfare of the community.
“Act” means doing or performing something.
“Applicable department director” means the director of the department or his or her designee.
“Civil violation” means a violation for which a monetary penalty may be imposed as specified in this chapter. Each day or portion of a day during which a violation occurs or exists is a separate violation. Traffic infractions issued pursuant to Title 11 are specifically excluded from the application of this chapter.
“Development” means the erection, alteration, enlargement, demolition, maintenance or use of any structure or the alteration or use of any land above, at or below ground or water level, and all acts governed by a city regulation.
“Emergency” means a situation which in the opinion of the applicable department director requires immediate action to prevent or eliminate an immediate threat to the health or safety of persons or property.
“Hearing examiner” means the Kirkland hearing examiner and the office thereof established pursuant to Chapter 3.34.
“Omission” means a failure to act.
“Person” means any individual, firm, association, partnership, corporation or any entity, public or private.
“Person responsible for the violation” means any person who is required by the applicable regulation to comply therewith, or who commits any act or omission which is a civil violation or causes or permits a civil violation to occur or remain upon property in the city, and includes but is not limited to owner(s), lessor(s), tenant(s), or other person(s) entitled to control, use and/or occupy property where a civil violation occurs. For violations of the city sign regulations, this definition includes, but is not limited to, sign installers/posters, sign owners, and any other persons who cause or participate in the placement of a sign in a manner that constitutes a civil violation. For violations of city tree regulations, this definition includes any person who caused or participated in the removal of a tree in a manner that constitutes a civil violation.
“Regulation” means and includes the following, as they now exist or are hereafter amended:
(1) Title 23 (Kirkland Zoning Code);
(2) Title 21, Buildings and Construction (including codes adopted by reference);
(3) Chapter 15.52 (Surface Water Management);
(4) Title 29 (Land Surface Modification);
(5) Chapter 19.04 (Obstructing Streets or Sidewalks);
(6) Chapter 11.76 (Junk Vehicles);
(7) Chapter 11.24 (Nuisances);
(8) The terms and conditions of any permit or approval issued by the city, or any concomitant agreement with the city.
“Repeat violation” means a violation of the same regulation in any location by the same person for which voluntary compliance previously has been sought within two years or a notice of civil violation has been issued within two years.
“Violation” means an act or omission contrary to a city development regulation including an act or omission at the same or different location by the same person and including a condition resulting from such act or omission. (Ord. 4280 § 1 (part), 2011)
1.12.030 Voluntary correction.
(a) Applicability. This section applies whenever the applicable department director determines that a violation of a regulation has occurred or is occurring.
(b) General. The applicable department director shall make a reasonable attempt to secure voluntary correction by contacting the person responsible for the violation, where possible, explaining the violation and requesting correction.
(c) Issuance of Voluntary Correction Agreement. A voluntary correction agreement may be entered into between the person responsible for the violation and the city, acting through the applicable department director.
(1) Content. The voluntary correction agreement is a contract between the city and the person responsible for the violation under which such person agrees to abate the violation within a specified time and according to specified conditions. The voluntary correction agreement shall include the following:
(A) The name and address of the person responsible for the violation; and
(B) The street address or a description sufficient for identification of the building, structure, premises, or land upon or within which the violation has occurred or is occurring; and
(C) A description of the violation and a reference to the provision(s) of the city ordinance or regulation which has been violated; and
(D) The necessary corrective action to be taken, and a date or time by which correction must be completed; and
(E) An agreement by the person responsible for the violation that the city may abate the violation and recover its costs and expenses and assess a monetary penalty pursuant to this chapter from the person responsible for the violation if terms of the voluntary correction agreement are not met; and
(F) An agreement that by entering into the voluntary correction agreement the person responsible for the violation waives the right to an administrative appeal of the violation and/or the required corrective action.
(2) Right to a Hearing Waived. The person responsible for the violation waives the right to an administrative appeal of the violation and the required corrective action upon entering into a voluntary correction agreement.
(3) Extension—Modification. An extension of the time limit for correction or a modification of the required corrective action may be granted by the applicable department director if the person responsible for the violation has shown due diligence and/or substantial progress in correcting the violation but unforeseen circumstances render correction under the original conditions unattainable.
(4) Abatement by the City. The city may abate the violation in accordance with Section 1.12.060 if the terms of the voluntary correction agreement are not met.
(5) Collection of Costs. If the terms of the voluntary correction agreement are not met, the person responsible for the violation shall be assessed a monetary penalty commencing on the date set for correction and thereafter, in accordance with Section 1.12.040, plus all costs and expenses of abatement, as set forth in Section 1.12.060. (Ord. 4280 § 1 (part), 2011)
1.12.040 Notice of civil violation.
(a) Issuance.
(1) When the applicable department director determines that a violation has occurred or is occurring, and is unable to secure voluntary correction pursuant to Section 1.12.030, the applicable department director may issue a notice of civil violation to the person responsible for the violation.
(2) The applicable department director may issue a notice of civil violation without having attempted to secure voluntary correction as provided in Section 1.12.030 under the following circumstances:
(A) When an emergency exists;
(B) When a repeat violation occurs;
(C) When the violation creates a situation or condition which cannot be corrected;
(D) When the person knows or reasonably should have known that the action is in violation of a city regulation.
(b) Content. The notice of civil violation shall include the following:
(1) The name and address of the person responsible for that violation; and
(2) The street address or description sufficient for identification of the building, structure, premises, or land upon or within which the violation has occurred or is occurring; and
(3) A description of the violation and a reference to the provision(s) of the city regulation which has been violated; and
(4) The required corrective action and a date and time by which the correction must be completed, after which the city may abate the unlawful condition in accordance with Section 1.12.060 and the hearing examiner’s order; and
(5) The date, time and location of a hearing before the hearing examiner, which will be at least ten days from the date the notice of civil violation is issued; and
(6) A statement indicating that the hearing will be canceled and no monetary penalty will be assessed if the applicable department director approves the completed, required corrective action at least forty-eight hours prior to the hearing, except that this statement need not be included where the violation constitutes a repeat violation or the violation creates a situation or condition which cannot be corrected; and
(7) A statement that the costs and expenses of abatement incurred by the city pursuant to Section 1.12.060 and a monetary penalty in an amount per day for each violation as specified in subsection (e) of this section may be assessed against the person to whom the notice of civil violation is directed as specified and ordered by the hearing examiner.
(c) Service of Notice. The applicable department director shall serve the notice of civil violation upon the person to whom it is directed, either personally or by mailing a copy of the notice of civil violation to such person at their last known address. If the person to whom it is directed cannot after due diligence be personally served within King County and if an address for mailed service cannot after due diligence be ascertained, notice shall be served by posting a copy of the notice of civil violation conspicuously on the affected property or structure. Proof of service shall be made by a written declaration under penalty of perjury executed by the person effecting the service, declaring the time and date of service, the manner by which the service was made, and if by posting the facts showing that due diligence was used in attempting to serve the person personally or by mail.
(d) Extension. No extension of the time specified in the notice of civil violation for correction of the violation may be granted, except by order of the hearing examiner.
(e) Monetary Penalty. The amount of the monetary penalty per day or portion thereof for each violation is as follows:
(1) First violation: one hundred dollars;
(2) Second violation: two hundred dollars;
(3) Third violation: three hundred dollars;
(4) Additional violation in excess of three: five hundred dollars.
The hearing examiner may double the monetary penalty schedule if the violation was a repeat violation. In determining the amount of the monetary penalty for repeat violations, the hearing examiner shall consider the factors set forth in Section 1.12.050(d)(4).
(f) Continued Duty to Correct. Payment of a monetary penalty pursuant to this chapter does not relieve the person to whom the notice of civil violation was issued of the duty to correct the violation.
(g) Collection of Monetary Penalty.
(1) The monetary penalty constitutes a personal obligation of the person to whom the notice of civil violation is directed. Any monetary penalty assessed must be paid to the city within ten calendar days from the date of mailing of the hearing examiner’s decision or a notice from the city that penalties are due.
(2) The city attorney or his/her designee is authorized to take appropriate action to collect the monetary penalty. The city may contract with a collection agency for this purpose. (Ord. 4280 § 1 (part), 2011)
1.12.050 Hearing before the hearing examiner.
(a) Notice. A person to whom a notice of civil violation is issued will be scheduled to appear before the hearing examiner not less than ten calendar days after the notice of civil violation is issued.
(b) Prior Correction of Violation or Payment of Monetary Penalty. Except in the case of a repeat violation or a violation which creates a situation or condition which cannot be corrected, the hearing will be canceled and no monetary penalty will be assessed if the applicable department director approves the completed required corrective action at least forty-eight hours prior to the scheduled hearing.
(c) Procedure. The hearing examiner shall conduct a hearing on the civil violation pursuant to the rules of procedure of the hearing examiner. The applicable department director and the person to whom the notice of civil violation was directed may participate as parties in the hearing and each party may call witnesses. The city shall have the burden of proof to demonstrate by a preponderance of the evidence that a violation has occurred and that the required corrective action, if applicable, is reasonable. The determination of the applicable department director as to the need for the required corrective action shall be accorded substantial weight by the hearing examiner in determining the reasonableness of the required corrective action.
(d) Decision of the Hearing Examiner.
(1) The hearing examiner shall determine whether the city has established by a preponderance of the evidence that a violation has occurred and that the required correction is reasonable and shall affirm, vacate, or modify the city’s decisions regarding the alleged violation and/or the required corrective action, with or without written conditions.
(2) The hearing examiner shall issue an order to the person responsible for the violation which contains the following information:
(A) The decision regarding the alleged violation including findings of fact and conclusions based thereon in support of the decision;
(B) The required corrective action;
(C) The date and time by which the correction must be completed;
(D) The monetary penalties assessed based on the criteria in subsection (d)(3) of this section;
(E) The date and time after which the city may proceed with abatement of the unlawful condition if the required correction is not completed.
(3) Assessment of Monetary Penalty. Monetary penalties assessed by the hearing examiner shall be in accordance with the monetary penalty schedule in Section 1.12.040. The hearing examiner shall have the following options in assessing monetary penalties:
(A) Assess monetary penalties beginning on the date the notice of civil violation was issued and thereafter; or
(B) Assess monetary penalties beginning on the correction date set by the applicable department director or an alternate correction date set by the hearing examiner and thereafter; or
(C) Assess no monetary penalties.
(4) Determining Monetary Penalty. In determining the monetary penalty assessment, the hearing examiner shall consider the following factors:
(A) Whether the person responded to staff attempts to contact the person and cooperated with efforts to correct the violation;
(B) Whether the person failed to appear at the hearing;
(C) Whether the violation was a repeat violation;
(D) Whether the person showed due diligence and/or substantial progress in correcting the violation;
(E) Whether a genuine code interpretation issue exists; and
(F) Any other relevant factors.
(5) Effect of Repeat Violations. The hearing examiner shall assess a monetary penalty for each repeat violation as set forth in Section 1.12.040.
(6) Notice of Decision. The hearing examiner shall mail a copy of the decision to the appellant and to the applicable department director within ten working days of the hearing.
(e) Failure to Appear. If the person to whom the notice of civil violation was issued fails to appear at the scheduled hearing, the examiner will enter an order finding that the violation appeared and assessing the appropriate monetary penalty. The city will carry out the hearing examiner’s order and recover all related expenses, plus the cost of the hearing and any monetary penalty from that person.
(f) Appeal to Superior Court. An appeal of the decision of the hearing examiner must be filed with superior court within twenty-one calendar days from the date the hearing examiner’s decision was mailed to the person to whom the notice of civil violation was directed, or is thereafter barred. (Ord. 4280 § 1 (part), 2011)
1.12.060 Abatement by the city.
(a) The city may abate a condition which was caused by or continues to be a civil violation when:
(1) The terms of a voluntary correction agreement pursuant to Section 1.12.030 have not been met; or
(2) A notice of civil violation has been issued pursuant to Section 1.12.040 and a hearing has been held pursuant to Section 1.12.050 and the required correction has not been completed by the date specified in the hearing examiner’s order; or
(3) The condition is subject to summary abatement as provided for in subsection (b) of this section.
(b) Summary Abatement. Whenever any violation of a regulation causes a condition the continued existence of which constitutes an immediate and emergent threat to the public health, safety or welfare or to the environment, the city may summarily and without prior notice abate the condition. Notice of such abatement, including the reason for it, shall be given to the person responsible for the violation as soon as reasonably possible after the abatement.
(c) Authorized Action by the City. Using any lawful means, the city may enter upon the subject property and may remove or correct the condition which is subject to abatement. The city may seek such judicial process as it deems necessary to effect the removal or correction of such condition.
(d) Recovery of Costs and Expenses. The costs, including incidental expenses, of correcting the violation shall be billed to the person responsible for the violation and/or the owner, lessor, tenant or other person entitled to control, use and/or occupy the property and shall become due and payable to the city at the permit center within ten calendar days. The term “incidental expenses” includes but shall not be limited to personnel costs, both direct and indirect, including attorney’s fees; costs incurred in documenting the violation; hauling, storage and disposal expenses; and actual expenses and costs of the city in preparing notices, specifications and contracts, and in accomplishing and/or contracting and inspecting the work; and the costs of any required printing and mailing.
(e) Interference. No person shall obstruct, impede, or interfere with the city or its agents, or with any person who owns or holds any interest or estate in any property, in performing any tasks necessary to correct the violation. (Ord. 4280 § 1 (part), 2011)
1.12.070 Stop work orders and orders to cease and desist.
(a) Issuance of Order. Whenever the applicable department director finds any activity is being conducted or work being performed without a permit or in a manner contrary either to the provisions of the Kirkland Zoning Code or Kirkland Municipal Code, including any of the technical codes adopted by reference in Title 21, the applicable department director is authorized to issue a stop work order or order to cease and desist. The order shall be in writing and shall be given to the owner or occupant of the property involved, or to the owner’s agent, or to the person doing the work. Upon issuance of a stop work order or order to cease and desist, the cited work or activity shall immediately cease. The order shall state the reason for the order, and the conditions under which the cited work or activity will be permitted to resume.
(b) Fees and Penalties. The applicable department director is authorized to assess a special investigation fee for the issuance of a stop work order or order to cease and desist based on the costs to the city of investigation and enforcement of the order. Any person who shall continue any work or activity on the property after having been served with a stop work order or order to cease and desist (except such work as that person is directed to perform to remove a violation or unsafe condition) shall be subject to penalties as provided under this chapter and as otherwise prescribed by law. A stop work order or order to cease activity may be appealed in the same manner and pursuant to the same provisions as a notice of civil violation under this chapter. (Ord. 4280 § 1 (part), 2011)
1.12.080 Entry to buildings and premises— Warrants.
Whenever necessary to make an inspection to determine whether a civil violation has occurred or is occurring, or to enforce any provision of the Kirkland Zoning Code or Kirkland Municipal Code, or regulation issued thereunder, violation of which is a civil violation under this chapter, the applicable department director or his designee may enter any building or premises at any reasonable time, provided if such building or premises is occupied he shall first present credentials and demand entry, and if such building or premises is not occupied, he shall first make a reasonable effort to locate the owner or other person having charge of the building or premises and demand entry. If such entry is refused, or the owner or other person having charge of the building or premises cannot be located, the applicable department director or his designee shall have recourse to every remedy provided by law to secure entry, including recourse to the district or superior court for issuance of a warrant authorizing such entry and inspection. (Ord. 4280 § 1 (part), 2011)
1.12.090 Additional enforcement procedures.
The provisions of this chapter are not exclusive, and may be used in addition to other enforcement provisions authorized by the Kirkland Municipal Code except as precluded by law. (Ord. 4280 § 1 (part), 2011)
1.12.100 Special provisions relating to enforcement of tree regulations.
(a) General Requirements. This section applies to all trees in the city, including private property trees, public property trees and street trees. Enforcement shall be conducted in accordance with procedures set forth in this chapter. Special enforcement provisions related to tree conservation are set forth in this section.
(b) Authority. It shall be the duty of the applicable department director to administer the provisions of this section.
(c) Cease and Desist. The applicable department director may issue a notice to cease and desist using the procedure set forth in this chapter if he or she finds that a violation of this code has occurred. Continued illegal tree activity following issuance of a cease and desist from the city for the tree activity shall result in fines of one thousand dollars per day of continued activity.
(d) Stop Work Order. If a violation of Chapter 95 of the Kirkland Zoning Code or an approved tree retention plan occurs on property on which work is taking place pursuant to a city of Kirkland development or building permit, the building official may suspend some or all of the work as appropriate through issuance of a stop work order. The building official shall remove the stop work order when the city determines that the violation has been corrected or when the city has reached an agreement with the violator regarding rectification of the violation. Any stop work order issued under this section may be appealed using the procedures set forth in this chapter.
(e) Civil Penalty for Violations of the Tree Code.
(1) A person who fails to comply with the requirements of Kirkland Zoning Code Chapter 95 or the terms of a permit issued thereunder, who undertakes an activity regulated by this chapter without obtaining a permit, or who fails to comply with a cease and desist or stop work order issued under this chapter shall also be subject to a civil penalty as set forth in the following table. Each unlawfully removed or damaged tree shall constitute a separate violation.
(2) Any person who aids or abets in the violation shall be considered to have committed a violation for purposes of the civil penalty.
(3) The amount of the penalty shall be assessed in accordance with Table 1.12.100. The applicable department director may elect not to seek penalties if he or she determines that the circumstances do not warrant imposition of civil penalties in addition to restoration.
|
Types of Violations |
Allowable Fines per Violation |
|---|---|
|
1. Removal of tree(s) approved to be removed, but prior to final tree plan approval or issuance of a city tree removal permit |
$100.00 per tree |
|
2. Removal or damage of tree(s) that are or would be shown to be retained on an approved tree plan or any other violation of approved tree protection plan |
$1,000 per tree |
|
3. Removal of tree(s) without applying for or obtaining a required city permit |
$1,000 per tree |
(f) Tree Restoration.
(1) Violators of Kirkland Zoning Code Chapter 95 or of a permit issued thereunder shall be responsible for restoring unlawfully damaged areas in conformance with a restoration plan approved by the applicable department director. The restoration plan shall provide for repair of any environmental and property damage and restoration of the site. The goal of the restoration plan shall be a site condition that, to the greatest extent practical, equals the site condition that would have existed in the absence of the violation. In cases where the violator intentionally or knowingly violated this chapter or has committed previous violations of this chapter, restoration costs may be based on the city-appraised tree value of the subject trees in which the violation occurred, utilizing the industry standard trunk formula method in the current edition of the “Guide for Plant Appraisal.” If diameter of removed tree is unknown, determination of the diameter size shall be made by the applicable department director by comparing size of stump and species to similar trees in similar growing conditions. The amount of costs above the approved restoration plan will be paid into the city forestry account.
(2) Restoration Plan Standards. The restoration plan shall be in accordance to the following standards:
(A) The number of trees required to be planted is equal to the number of tree credits of illegally removed trees according to Kirkland Zoning Code Table 95.33.1.
(B) The minimum size for a tree planted for restoration is twelve-foot-tall conifer and three-inch caliper deciduous or broadleaf evergreen tree. The city may approve smaller restoration tree sizes at a higher restoration ratio, provided the site has capacity for the additional trees and the results of restoration at a higher restoration ratio are as good or better than at the normal ratio. The smallest allowable alternatives to the normal restoration requirements shall be two eight-foot conifers for one twelve-foot conifer or two two-inch caliper deciduous for one three-inch caliper deciduous tree.
(C) In the event the violators cannot restore the unlawfully removed or damaged trees, the violators shall make payment to the city forestry account. Unless otherwise determined to base the restoration costs on appraised value, the amount paid will be the city’s unit cost for a restoration tree multiplied by the number of outstanding tree credits. The city’s unit cost is based on the current market cost of purchase, installation and three-year maintenance for a minimum-sized tree for restoration.
(D) The restoration plan shall include a maintenance plan and an agreement or security to ensure survival and maintenance of restoration trees for a three-year period unless the violation was on a site with an approved tree plan, in which case the maintenance period is five years.
(g) Failure to Restore or Pay Fines.
(1) Prohibition of Further Approvals. The city shall not approve any application for a subdivision or any other development permit or approval or issue a certificate of occupancy for property on which a violation of this chapter has occurred until the violation is cured by restoration or other means accepted by the applicable department director and by payment of any penalty imposed for the violation.
(2) Fines. A property owner or occupant who fails to restore or otherwise cure property on which a violation of this chapter has occurred shall be assessed a fine of one hundred dollars per day for each day that restoration is incomplete. Prior to assessing fines under this subsection, the city shall issue a written notice to the property owner or occupant that restoration has not been completed. The notice shall include the following information: (A) a description of the nature of the violation; (B) a description of what actions are required to bring the property into compliance; and (C) a date by which compliance shall be required (the “compliance date”). The compliance date shall be no less than thirty days from the date the notice is served on the property owner or occupant. If the property owner or occupant does not, in the determination of the city, bring the property into compliance by the compliance date, then the city may issue an order imposing one-hundred-dollar-per-day fines at any time after the compliance date. (Ord. 4280 § 1 (part), 2011)
1.12.110 Special provisions relating to enforcement of nuisance regulations.
(a) Upon the discovery of a public nuisance that does not constitute an immediate threat to the public health, welfare or safety (including but not limited to a violation of Chapter 11.24), the applicable department director shall issue an order of abatement to the appropriate responsible parties identifying the nuisance and applicable code section violated, imposing a civil fine of not more than five thousand dollars and the date by which it must be paid, ordering a method of abatement, the date by which abatement must be accomplished, and containing notice of any right of appeal.
(b) In case of a failure to abate or to appeal, the applicable department director shall notify the appropriate responsible parties that the city will abate the nuisance, the date abatement will occur, and that the city will assess the cost of abatement and any fine levied jointly and severally against the responsible parties, the subject property or both; provided, that in cases of immediate necessity as determined by the applicable department director, prior notification under this subsection may be dispensed with and the applicable department director shall provide the notice after the abatement has occurred. Such notice shall state the date the abatement occurred, the amount due the city for costs incurred in abating the nuisance, and any fines levied.
(c) An order of abatement or any notice required herein shall be served upon the appropriate responsible parties as determined by the applicable department director in the manner set forth in Section 1.12.040.
(d) A person may appeal an order of abatement by filing a written notice of appeal with the department of planning and community development within ten calendar days from the date of service of the notice. Except as otherwise provided in this section, the appeal hearing shall be held in the manner set forth in Section 1.12.050.
(1) The hearing examiner may sustain the order and fine, modify the order and fine or dismiss the order and fine; provided, that whenever the order is sustained or modified, the hearing examiner shall establish a new date for abatement or affirm the original date. When appropriate, the hearing examiner may also require that the appellant post a bond to secure performance of the abatement by the appellant.
(2) A sustained or modified abatement order shall also provide that in the event the appellant does not abate the nuisance by the date provided in the order, the applicable department director may abate the nuisance in any reasonable manner without further notice and that any costs and fines may be satisfied by the sale of any property obtained by the abatement or collected directly from the appellant or other responsible parties previously notified of the order of abatement.
(e) Notwithstanding the foregoing, the applicable department director may summarily abate a public nuisance on private property without prior notice using the procedures set forth in Section 11.24.050 whenever it is of such character as to constitute an imminent threat to the public health, welfare or safety.
(f) At the applicable department director’s discretion, the costs of abatement and fines shall be a lien against and collected from the sale of the property constituting the nuisance, the responsible parties, who shall be jointly and severally liable for the costs, or both. The city shall maintain an account of all costs incurred in performing an abatement. In addition to other powers given in this chapter to collect abatement costs, the city attorney may bring suit for recovery of the costs of any abatement in any court of competent jurisdiction, in the name of the city, against the subject property or the responsible parties. (Ord. 4280 § 1 (part), 2011)